XIX. Writing a Brief
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Federal Rule of Appellate Procedure 28(a) sets forth specifically the appropriate subdivisions, and their sequence, of a brief. These requirements have been supplemented by Circuit Rules 12(b), 26.1, 28, 30, and 52. Note that Fed. R. App. P. 32 and Cir. R. 32 severely shortens the page limitations for briefs unless the brief meets strict type face and “type volume limitations” and counsel certifies compliance. Counsel must assure that the required subdivisions are provided under an appropriate heading and in the proper sequence. The clerk’s office strictly enforces this rule and non-complying briefs may be rejected.
The judges must rely on the opposing advocates to state the facts of record, point out the applicable rules of law, and make them aware of the equities of a particular case. Most appeals are decided largely on the basis of the briefs.
In writing the brief, one must bear in mind that the Seventh Circuit judges read the briefs in advance of oral argument. Thus, it is the first step in persuasion, as well as being by far the more important step. After oral argument, it is usually reexamined by the judges and will be used in the writing of the opinion.
In general the briefs should contain all that the judges will want to know, including references to anything other than the briefs that may have to be consulted in the record or in the precedents.
Pursuant to Fed. R. App. P. 28(a), an appellant’s principal brief must contain the following sections in the order indicated (appellees’ opening briefs also must comply subject to the exceptions of Fed. R. App. P. 28(b)):
a. A disclosure statement, if required. See Fed. R. App. P.26.1, Cir. R. 26.1.
b. A table of contents, with page references.
c. A table of authorities-cases (alphabetically arranged), statutes, and other authorities, with page references for each section and citation.
d. A concise and comprehensive jurisdictional statement in the appellant’s or petitioner’s brief explaining the statutory basis for appellate and district court jurisdiction. Fed. R. App. P. 28(a)(4); Cir. R. 28(a). Circuit Rule 28(a) is very extensive and specific as to the contents of the statement of jurisdiction. It must be consulted. The appellee or respondent must check the appellant/petitioner’s statement of jurisdiction to see if it complies with Rule 28. If it does not, the appellee/respondent must explicitly state that the appellant’s jurisdictional statement is “not complete and correct” and include a complete and correct statement of jurisdiction in its brief, not merely point out the incorrect portion. Cir. R. 28(b). See Freeman v. Mayer, 95 F.3d 569, 571 (7th Cir. 1996).
e. A statement of the issue or issues presented for review. This requires careful selection and choice of language. An appellee or respondent need not state the issues unless dissatisfied with appellant’s or petitioner’s statement. See Fed. R. App. P. 32(a)(4) for proper form.
The main issue should be stressed and an effort made to present no more than two or three questions. The questions selected should be stated clearly and simply.
Examples:
(1) Which court, the district court or the court of appeals, has jurisdiction to review certain regulations promulgated under the Federal Water Pollution Control Act of 1972, 33 U.S.C. §§ 1251-1376?
(2) Whether police officers’ removal of heroin from the defendant’s automobile after stopping him for a traffic violation and the subsequent introduction of the heroin at trial violated his rights under the Fourth Amendment?
(3) Whether a private cause of action for damages against corporate directors is to be implied in favor of a stockholder under 18 U.S.C. § 610, which makes it an offense for a corporation to make “a contribution or expenditure in connection with any election at which Presidential and Vice Presidential electors . . . are to be voted for?”
(4) Whether state regulations that permit welfare payments to workers on
strike are inconsistent with and, therefore, precluded by
(a) federal labor policy (cite statute and regulations)?
(b) federal welfare policy (cite statute and regulations)?
(5) Was there a material issue of fact as to whether the contract had been
revoked which precluded summary judgment?
On occasion, although not usually, the questions may be better understood, or
stated more simply, if preceded by an introductory factual paragraph.
As you can see, the given examples are concise without being vague or too
general. The following issues are not well stated. Did the district court err in
granting [failing to grant] a directed verdict? Was summary judgment properly
granted? Was there sufficient evidence to support the jury’s verdict? Did the
order obtained by the prosecutors after indictment requiring defendant Doe to
furnish evidence directly to the prosecutors grant the government a mode and
manner of discovery not sanctioned by the law and in violation of the Fourth,
Fifth, Sixth, and Fourteenth Amendment rights of defendant Doe, thereby
rendering evidence relating thereto as inadmissible?
f. A concise statement of the case indicating the nature of the case, the course of
proceedings, and the disposition in the court below. The appellee or respondent
may omit this section from its brief if satisfied with appellant’s or petitioner’s
statement.
g. A concise and objective statement of the facts relevant to the issues presented
for review. Every fact must be supported by a reference to the page or pages of
the record or appendix where the fact appears. Fed. R. App. P. 28(e). The statement
must be a fair summary without argument or comment. Cir. R. 28(c).
The statement should be a narrative chronological summary, rather than a
digest or an abstract of what each witness said. The judges view the statement
of facts as a very important part of the brief. Great care should be taken that
the facts are well marshaled and stated. If this is done, the facts themselves
will often develop the relevant and governing points of law. An effective
statement summarizes the facts so that the reader is persuaded that justice
and the precedents both require a decision for the advocate’s client. While Fed.
R. App. P. 28(b) provides that the appellee need not make any statement of the
case or of the facts unless controverting that of the appellant, the appellee
should present a statement if the appellee believes that the relevant facts have
not been fairly presented by the appellant or that the appellant has omitted or
stated them incorrectly.
A long factual statement should be suitably divided by appropriate headings.
Nothing is more discouraging to the judicial reader than a great expanse of
print with no guideposts and little paragraphing. Short paragraphs with topic
sentences and frequent headings and subheadings assure that the court will
follow and understand the points that are being made.
h. A summary of the argument, which must contain a succinct, clear and accurate
statement of the arguments made in the body of the brief, and not merely a
repeat of the argument headings. For longer summaries it is useful to the court
that the summary include references to the pages of the brief at which the
principal contentions are made. Fed R. App. P. 28(a)(8).
i. A statement of the appellate standard of review. The brief must contain a
statement of the standard of review for each individual issue raised. Fed. R.
App. P. 28(a)(9)(B). This can be a separate section or precede each argument
depending on how it is best presented to the reader. If the appellee or
respondent disputes appellant’s or petitioner’s statement, appellee’s or
respondent’s brief should contain a statement of the standard of review.
j. The argument. It should be suitably broken up into the main points with
appropriate headings and contain the reasons in support of one’s position,
including an analysis of the evidence, if that is called for, and a discussion of
the authorities. Where possible, the emphasis should be on reason, not merely
on precedent, unless a particular decision is controlling. A few good cases on
point, with a sufficient discussion of their facts to show how they are relevant,
are preferred over a profusion of citations. Quotations should be used
sparingly. If a case is worth citing, it usually has a quote which will drive the
point home, and one or two good cases are ordinarily sufficient. If the case cited
does not have a good quote, a terse summary in a sentence or two will show the
court that the case should be read. A long discussion of the facts of the cases
cited is usually not needed, except where there is a precedent so closely on
point that it must be distinguished if the party is to prevail. The pertinent part
of relevant statutes or regulations, with citations to the United States Code,
Code of Federal Regulations, or state statutory compilation should be set out in
the brief. If these are voluminous, they should be incorporated in the appendix.
Fed. R. App. P. 28(f)
Where state law is applicable, the federal courts must take the law as it has
been laid down by the state courts. The state court interpretation of state law
will control and a federal court cannot disregard state decisions even though it
may disagree with them. However, if the law of the state appears to be
uncertain, it is desirable not to confine discussion of the law to the particular
state involved if helpful precedents exist elsewhere. For certifying question of
state law, see Cir. R. 52 and discussion, infra at Section XXII of this Handbook.
References to and quotations from law reviews and legal writers are always
permissible and desirable.
The brief writer should never forget that the judges are reading the briefs in
six cases in preparation for each day of oral argument. The writer must select
what is important and deal only with that; all that is not necessary should be
ruthlessly discarded. Except in unusually complicated cases, a brief that treats
more than three or four matters runs a serious risk of becoming too diffused
and giving the overall impression that no one claimed error can be very
serious.
The appellee’s brief should squarely meet the appellant’s points. The same care
should be taken by the appellee to avoid diffusion and yet present all
substantial additional arguments available in support of the judgment below.
Finally, a reply brief shall be limited to matters in reply. New arguments
raised for the first time in a reply brief may be stricken and deemed waived.
The writing style in a brief should be simple, graceful, and clear. To achieve
these qualities, the writer will usually need to revise carefully the initial draft
and subsequent drafts. The court prefers that italics, underlining, bolding and
footnotes be used sparingly and all caps should not be used in headings.
Accuracy is imperative in statements, record references, citations, and
quotations.
k. A short concluding paragraph stating the exact relief that the party is seeking
on appeal.
l. A certification that the type-volume limitation of Fed. R. App. P. 32(a)(7) has
been complied with.
m. Appendix. See Circuit Rule 30 and discussion infra at Section XXIII of this
Handbook. Note particularly the requirement of Circuit Rule 30(d) of a
statement that all required materials are in the appendix. Counsel should err
on the side of inclusion, especially of relevant statutes or decisions claimed to
be controlling.
n. Amicus briefs. An amicus brief need not comply with Fed. R. App. P. 28, but
nonetheless must include the following sections: a table of contents; a table of
authorities cited; a concise statement of the identity of the amicus; its interest
in the case and the source of its authority to file; an argument; and a Rule
32(a)(7) certification. Additionally, the cover of the brief must identify the
party supported and indicate whether the amicus supports affirmance or
reversal. Fed. R. App. P. 29(c).
